[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43918-43923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18419]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0298; FRL-9440-6]


Approval and Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standard; Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving and partially disapproving the 
State Implementation Plan (SIP) submission from the State of Montana to 
demonstrate that the SIP meets the requirements of Sections 110(a)(1) 
and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality 
Standards (NAAQS) promulgated for ozone on July 18, 1997. Section 
110(a)(1) of the CAA requires that each state, after a new or revised 
NAAQS is promulgated, review their SIPs to ensure that they meet the 
requirements of the ``infrastructure elements'' of section 110(a)(2). 
The State of Montana submitted two certifications, dated November 28, 
2007 and December 22, 2009, that its SIP met these requirements for the 
1997 ozone NAAQS. The November 28, 2007 certification was determined to 
be complete on March 27, 2008 (73 FR 16205).

DATES: Effective Date: This final rule is effective August 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2010-0298. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at 
all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
[email protected].

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time a state 
develops and submits its SIP for a new or revised NAAQS affects the 
content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions a state's existing SIP already 
contains. In the case of the 1997 ozone NAAQS, states typically have 
met the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with previous NAAQS. In a 
guidance issued on October 2, 2007, EPA noted that, to the extent an 
existing SIP already meets the section 110(a)(2) requirements, states 
need only to certify that fact via a letter to EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 
finding for each state that it had submitted or had failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 
particular, EPA found that Montana had submitted a complete SIP 
(``Infrastructure SIP'') to meet these requirements.
    On May 19, 2011, EPA published a notice of proposed rulemaking 
(NPR) for the State of Montana (76 FR 28934) to

[[Page 43919]]

act on the State's Infrastructure SIP for the 1997 ozone NAAQS. 
Specifically, in the NPR EPA proposed approval of Montana's SIP as 
meeting the requirements of section 110(a)(2) elements (A), (B), 
(D)(ii), (E), (F), (G), (H), (K), (L) and (M) with respect to the 1997 
ozone NAAQS. EPA proposed to disapprove 110(a)(2) elements (C) and (J) 
on the basis that Montana's SIP-approved Prevention of Significant 
Deterioration (PSD) program does not properly regulate nitrogen oxides 
as an ozone precursor. EPA did not propose action on elements (D)(i), 
(I), and the visibility protection requirement of element (J).\2\ EPA 
received a comment on section 110(a)(2)(E)(ii), and EPA is not 
finalizing today its proposed approval for this sub-element in order to 
fully respond to that comment.
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    \2\ See the NPR (76 FR 28934) for further explanation regarding 
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the 
proposal.
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Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on the infrastructure SIP 
submissions.\3\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements that it would 
address two issues separately and not as part of actions on the 
infrastructure SIP submissions: (i) Existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); and (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated that it would address the issues 
separately: (i) Existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (``minor source new 
source review (NSR)''); and (ii) existing provisions for PSD programs 
that may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' 67 FR 80,186 (December 31, 2002), as amended by 72 
FR 32,526 (June 13, 2007) (``NSR Reform''). In light of the comments, 
EPA now believes that its statements in various proposed actions on 
infrastructure SIPs with respect to these four individual issues should 
be explained in greater depth with respect to these issues.
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    \3\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four 
issues merely to be informational, and to provide general notice of the 
potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements, however, we want to explain more fully the Agency's 
reasons for concluding that these four potential substantive issues in 
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPS are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, NSR permitting program 
submissions required to address the requirements of part D, and a host 
of other specific types of SIP submissions that address other specific 
matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory

[[Page 43920]]

provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\4\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\5\
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    \4\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \5\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each SIP contains adequate provisions to prevent significant 
contribution to nonattainment of the NAAQS in other states. This 
provision contains numerous terms that require substantial 
rulemaking by EPA in order to determine such basic points as what 
constitutes significant contribution. See, e.g., ``Rule To Reduce 
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air 
Interstate Rule); Revisions to Acid Rain Program; Revisions to the 
NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12, 2005) (defining, 
among other things, the phrase ``contribute significantly to 
nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\6\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\7\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the SIP. Finally, EPA 
notes that not every element of section 110(a)(2) would be relevant, or 
as relevant, or relevant in the same way, for each new or revised NAAQS 
and the attendant infrastructure SIP submission for that NAAQS. For 
example, the monitoring requirements that might be necessary for 
purposes of section 110(a)(2)(B) for one NAAQS could be very different 
than what might be necessary for a different pollutant. Thus, the 
content of an infrastructure SIP submission to meet this element from a 
state might be very different for an entirely new NAAQS, versus a minor 
revision to an existing NAAQS.\8\
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    \6\ See, e.g., Id., 70 FR 25-162, at 63-65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \7\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet-Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director, Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \8\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\9\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \10\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \11\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self-
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \12\ For the

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one exception to that general assumption, however, i.e., how states 
should proceed with respect to the requirements of section 110(a)(2)(G) 
for the 1997 PM2.5 NAAQS, EPA gave much more specific 
recommendations. But for other infrastructure SIP submittals, and for 
certain elements of the submittals for the 1997 PM2.5 NAAQS, 
EPA assumed that each state would work with its corresponding EPA 
regional office to refine the scope of a state's submittal based on an 
assessment of how the requirements of section 110(a)(2) should 
reasonably apply to the basic structure of the SIP for the NAAQS in 
question.
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    \9\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director, Air Quality Policy Division, to Air Division Directors, 
Regions I--X, dated October 2, 2007 (the ``2007 Guidance''). EPA 
issued comparable guidance for the 2006 PM2.5 NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director, Air Quality Policy Division, to 
Regional Air Division Directors, Regions I--X, dated September 25, 
2009 (the ``2009 Guidance'').
    \10\ Id., at page 2.
    \11\ Id., at attachment A, page 1.
    \12\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self-explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the 
SSM, director's discretion, minor source NSR, or NSR Reform issues as 
among specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 
EPA did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in the context of the infrastructure SIPs for these 
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 
the states should make submissions in which they established that they 
have the basic SIP structure necessary to implement, maintain, and 
enforce the NAAQS. EPA believes that states can establish that they 
have the basic SIP structure, notwithstanding that there may be 
potential deficiencies within the existing SIP. Thus, EPA's proposals 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or otherwise to comply with the CAA.\13\ Section 110(k)(6) 
authorizes EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\14\ Significantly, EPA's determination 
that an action on the infrastructure SIP is not the appropriate time 
and place to address all potential existing SIP problems does not 
preclude the Agency's subsequent reliance on provisions in section 
110(a)(2) as part of the basis for action at a later time. For example, 
although it may not be appropriate to require a state to eliminate all 
existing inappropriate director's discretion provisions in the course 
of acting on the infrastructure SIP, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that the Agency cites in 
the course of addressing the issue in a subsequent action.\15\
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    \13\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \14\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 
34,641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57,051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21,2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
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II. Response to Comments

    EPA received one letter on June 20, 2011 containing comments from 
WildEarth Guardians (WG), an environmental organization. The 
significant comments made in WG's June 20, 2011 letter and EPA's 
responses to those comments are given below.
    Comment No. 1: The commenter states that Montana's SIP fails to 
meet the PSD requirements of section 110(a)(2)(J) due to a lack of 
ozone impact analysis for new or modified major sources. The commenter 
alleges a number of specific inadequacies, which EPA discusses 
separately below.
    Comment 1.a: The commenter states that the SIP does not require the 
State PSD permitting authority to ensure that a new or modified source 
does not cause or contribute to violations of the ozone NAAQS prior to 
issuance. The commenter cites section 165(a)(3) of the Act and quotes 
the language of 40 CFR 51.166(k)(1). The commenter later states that 
nothing in the SIP explicitly requires that ozone impacts be addressed.
    EPA Response: EPA disagrees with this comment. ARM 17.8.820, part 
of the Montana SIP, specifically requires PSD permit applicants to 
perform a source impact analysis. The language of section ARM 17.8.820 
mirrors the language in 40 CFR 51.166(k)(1) quoted by the commenter. In 
addition, there is nothing in this section or any other section of the 
SIP that exempts sources from carrying out the source impact analysis 
for the 1997 ozone NAAQS. Nor does the commenter cite any provision in 
the SIP that creates such an exemption. The

[[Page 43922]]

commenter is therefore in error in stating that the Montana SIP does 
not require the source impact analysis set out in 40 CFR 51.166(k)(1). 
Furthermore, ARM 17.8.820 requires the owner or operator of the 
proposed source or modification to demonstrate that the construction or 
modification of the source will not cause or contribute to a violation 
of any NAAQS. Such language includes the 1997 ozone NAAQS; thus the 
commenter is also in error in stating that the SIP does not 
specifically require ozone impacts to be addressed.
    Comment 1.b: The commenter states that the SIP does not identify 
any significant impact levels for ozone.
    EPA Response: EPA disagrees with the thrust of this comment. EPA 
has not identified significant impact levels (SILs) for ozone.\16\ The 
comment, therefore, does not provide any basis for EPA to change its 
proposed approval of the Montana infrastructure SIP for section 
110(a)(2)(C) or (J) for the 1997 ozone NAAQS.
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    \16\ For an explanation and discussion of SILs, in the context 
of PM2.5, see 75 FR 64864 (Oct. 20, 2010).
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    Comment 1.c: The commenter states, citing ARM 17.8.818(7)(a)(v), 
that the SIP indicates ``an ozone analysis may only be required if VOC 
emissions exceed 100 tons/year.'' The commenter alleges that there is 
no support for a 100 tpy significant emission rate and that the 
provision seems at odds with the Act.
    EPA Response: EPA disagrees with this comment. First, the commenter 
misunderstands the scope and application of the cited provision. ARM 
17.8.818(7)(a), which mirrors the provision at 40 CFR 51.166(i)(5), 
provides only for exemptions from the monitoring requirements in ARM 
17.8.822 based on concentration thresholds. These thresholds are known 
as significant monitoring concentrations (SMCs) and are unrelated to 
the significant emission rates (SERs) in 40 CFR 51.166(b)(23)(i). 
Furthermore, sources below the SMCs in ARM 17.8.818(7)(a) (and the 
parallel provision at 40 CFR 51.166(i)(5)) are not exempt from the 
source impact analysis discussed in the response to comment 2.a above. 
The commenter is therefore in error in stating that an ozone analysis 
would not be required for sources emitting less than 100 tpy of VOCs. 
Finally, the exemption in 17.8.818(7)(a)(v) is specifically provided 
for in 40 CFR 51.166(i)(5).
    Comment 1.d: The commenter states that ARM 17.8.822(7) ``explicitly 
allows the owner or operator of a proposed major source or major 
modification to forego a pre-construction ozone analysis altogether,'' 
instead allowing the Montana Department of Environmental Quality (DEQ) 
to ``provide post-approval monitoring data for ozone.''
    EPA Response: EPA disagrees with this comment. First, EPA notes 
that section 17.8.822(7), which parallels the provision in 40 CFR 
51.166(m)(1)(v), applies only if a proposed major stationary source or 
major modification of volatile organic compounds (VOCs) meets the 
requirements of subchapter 9, Montana's nonattainment NSR program, 
including, in particular, the requirement to satisfy the lowest 
achievable emissions rate (LAER) for VOCs. Second, the commenter 
appears to misunderstand the scope of this provision. The provision 
does not exempt sources subject to PSD from the requirement to perform 
the source impact analysis in ARM 17.8.820 (discussed in the response 
to comment 1.a above); instead it allows sources that meet certain 
requirements, including employing LAER for VOCs, to use post-
construction monitoring to replace the pre-application air quality 
analysis requirements of section 17.8.822.
    Comment 1.e: The commenter states that the Montana SIP does not 
meet the requirements of 40 CFR 51.166(l) regarding the use of air 
quality models.
    EPA Response: EPA disagrees with this comment. ARM 17.8.821, part 
of Montana's SIP-approved PSD program, mirrors the language of 40 CFR 
51.166(l).
    Comment No. 2: The commenter states that Montana's permitting fees 
for its Title V program are ``inadequate to ensure the reasonable costs 
of reviewing and acting upon permit applications and the reasonable 
costs of implementing and enforcing the terms and conditions of permits 
are covered.'' The commenter attributes Montana's lack of adequate 
resources to the State charging Title V permit applicants ``below the 
minimum requirements under Title V.'' The commenter discusses the fees 
charged by the State and cites an EPA memorandum discussing the 
presumptive minimum fee for part 70 (title V) programs. The commenter 
argues that there is no indication that the fees charged by the State, 
in aggregate, meet the presumptive minimum fee.
    EPA Response: EPA disagrees with this comment. As stated in the 
text of the section, 110(a)(2)(L) is no longer applicable to Title V 
operating permit programs after approval of such programs. As noted in 
the NPR, the Administrator's final approval of Montana's Title V 
operating permit program, including the Title V fee program, became 
effective on June 13, 2000 (65 FR 37049). Therefore, EPA concludes that 
the Montana infrastructure SIP for the 1997 ozone NAAQS meets the 
requirements of section 110(a)(2)(L) with respect to the Title V 
program.

III. Final Action

    In this action, EPA is approving the following section 110(a)(2) 
infrastructure elements for Montana for the 1997 ozone NAAQS: (A), (B), 
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (K), (L), and (M). EPA is 
taking no action today on section 110(a)(2)(E)(ii). EPA will address 
this sub-element in a later action.
    In this action, EPA is disapproving section 110(a)(2) 
infrastructure elements (C) and (J) for the 1997 ozone NAAQS. EPA 
proposed to disapprove these elements in its 5/19/11 NPR.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations (42 USC 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves some state law as meeting Federal requirements 
and disapproves other state law because it does not meet Federal 
requirements; this action does not impose additional requirements 
beyond those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 USC 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

[[Page 43923]]

     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 USC 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 20, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart BB--Montana

0
2. Section 52.1394 is added to read as follows:


Sec.  52.1394  Section 110(a)(2) infrastructure requirements.

    On December 22, 2009, David L. Klemp, Bureau Chief, Air Resources 
Management Bureau, of the Montana Department of Environmental Quality 
submitted a certification letter which provides the State of Montana's 
SIP provisions which meet the requirements of CAA Section 110(a)(1) and 
(2) relevant to the 1997 Ozone NAAQS.

[FR Doc. 2011-18419 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P